More Confusion on Renditions: The Role of Ostensibly Liberal Bloggers

There's a lot of smoke spewing up from the bits and pieces of Bush's leftover torture program, as the Obama administration is trying to refashion policies around apprehension, detention and interrogation of prisoners in what used to be called (or still is) the "Global War on Terror."

The foulest smell issues from the controversy over using cruel, inhuman, and degrading and/or torture techniques in the Army Field Manual (AFM). Obama, supported by some human rights organizations, especially Human Rights Watch and Human Rights First, has proposed making the AFM its "single standard" for all interrogations, including those done by the CIA.

While the CIA publicly balks, one wonders if they are that unhappy with the AFM's Appendix M, which codifies the old CIA interrogation doctrine of regression of the prisoner's personality through use of solitary confinement (isolation), sleep deprivation (debility), sensory deprivation, and a harsh form of "Fear Up" (dread)? In any case, Appendix M violates the very international documents Obama claims to uphold. That contradiction cannot hold, and other human rights groups, like Physicians for Human Rights and Center for Constitutional Rights, have publicly called for the elimination of Appendix M prior to acceptance of the AFM as any kind of interrogation template.

But if the AFM is the foulest, the controversy over rendition is the most opaque and contentious. Liberal bloggers have jumped on the bandwagon defending President Obama's Executive Order calling for a review of "the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States...." Forget that Obama did not outlaw the practice of rendition. But this is because, according to certain liberal bloggers, and a few human rights spokespeople (like Tom Malinowski of Human Rights Watch), "Under limited circumstances, there is a legitimate place" for renditions.

These individuals -- and Scott Horton and Hilzoy are two prominent such bloggers, followed somewhat by the more ambivalent soul-searching of the otherwise usually precise Glenn Greenwald on the issue -- believe that extraordinary renditions are something qualitatively different than regular or normal renditions. While U.S. Supreme Court decisions may see some distinction, these are about renditions "to justice" in a U.S. court (the Ker-Frisbie doctrine). No one is arguing that the renditions being considered by the U.S. today are these kinds of renditions, so the argument about "good" or "lawful" renditions is specious, and meant to confuse or muddy the waters.

In a truly extraordinary confluence of opinions, these same liberal bloggers either support the AFM as is or remain silent about the question of abuse in the Army Field Manual. Why the silence and/or support for such a heinous set of procedures? That's a question to be taken up another day.

According to Horton et al., extraordinary renditions are war crimes, because the government sends prisoners to foreign countries to be tortured. (That is certainly correct, so far as that goes.) "Legal" renditions -- as defined by Richard Clarke in a recent article, whose opinion was specifically endorsed by Horton and the anti-torture blog, Back to Our Senses -- are examples of "renditions performed by the American government [and] are legal, effective, and done within the scope of human rights" (emphasis added). And if you think differently, then you are "ridiculously misinformed", a "buffoon," a "moron" (the latter by a Daily Kos commenter to yours truly).

Truly, you can get a lawyer to argue that black is white and white is black, if you pay him or her enough, or if they have a well-entrenched political agenda.

"Expert" Opinions and the Rendition Question

Most of what passes for political commentary these days relies on the received "wisdom" of experts. So, if Scott Horton, an "expert" in international law, says that there is a "distinction between 'extraordinary renditions' and 'renditions'" (one is supposedly legal, if rare, the other is a serious crime), then it must be true. No one thinks to ask other authorities, and the sides line up based upon loyalty to their favorite authority.

There may be no other way around this, especially for non-lawyers like myself. And even among legal experts there may be profound differences of opinion, which hopefully are decided by respected and powerful courts, like the U.S. Supreme Court, or an appropriate international juridical body.

When I was looking to form an opinion on rendition, I did not just read a few blog entries by my favorite blogger or columnist, as trustworthy as I may usually find them. I did some of my own research and reading. It's really worth the effort. I rarely found "extraordinary rendition" separated from that of "rendition," unless the focus of a document were purely on the Bush Administration practice of renditions to torture. The latter fact is part of definitional problem involved in discussing this issue, as "extraordinary rendition" has become synonymous with Bush's program, but in fact E.R. existed prior to Bush's tenure, i.e., as a covert program used as a tactic, since at least 1995.

What I found in my search was plenty of examples in the law explaining the differences between lawful rendition, which we call extradition, and abduction. Here's a few, courtesy of Justice Stevens:

Extradition treaties prevent international conflict by providing agreed upon standards so that the parties may cooperate and avoid retaliatory invasions of territorial sovereignty. According to one writer, before extradition treaties became common, European States often granted asylum to fugitives from other States, with the result that "a sovereign could enforce the return of fugitives only by force of arms . . . . Extradition as an inducement to peaceful relations and friendly cooperation between states remained of little practical significance until after World War I." M. Bassiouni, International Extradition and World Public Order 6 (1974)

If you are enforcing your New World Order, I suppose you don't care about friendly cooperation between states. But how would Americans react if Afghanis kidnapped Bush or Cheney for crimes and brought them back to Afghanistan for trial, or even more to the point, delivered them over to the North Koreans for interrogation? Or how about Cubans kidnapping Luis Posada Carriles, who bombed Cubana flight 455 in September 1976 (with CIA foreknowledge, by the way), and today resides in the U.S.? Why not just junk all treaties and let the rule of might makes right the ultimate arbiter?

When Abraham Sofaer, Legal Adviser of the State Department, was questioned at a congressional hearing, he resisted the notion that such seizures were acceptable: " `Can you imagine us going into Paris and seizing some person we regard as a terrorist . . .? [H]ow would we feel if some foreign nation--let us take the United Kingdom--came over here and seized some terrorist suspect in New York City, or Boston, or Philadelphia, . . . because we refused through the normal channels of international, legal communications, to extradite that individual?' " Bill To Authorize Prosecution of Terrorists and Others Who Attack U. S. Government Employees and Citizens Abroad: Hearing before the Subcommittee on Security and Terrorism of the Senate Committee on the Judiciary, 99th Cong., 1st Sess., 63 (1985).

The Congressional Research Service, which produces material so that Congress can understand important legislative issues, has made it clear that its own analysis of rendition was about extrajudicial seizures. So did Amnesty International in a document on "'Rendition' and secret detention.' I think AI really described the salient problems I have with rendition, whether it's rendition to torture or not (assuming one can really determine what will happen to a prisoner who has been kidnapped and delivered to a foreign, or even domestic, penal or governmental or intelligence agency). I will quote it here somewhat at length (emphases added):

Amnesty International uses the term "rendition" to refer to a variety of practices by the US authorities involving transfers of individuals from one country to another, without any form of judicial or administrative process such as extradition. These practices, usually carried out in secret, include transferring "war on terror" detainees into the custody of other states, assuming custody of individuals from foreign authorities and abducting suspects on foreign soil.

The practice of transferring a detainee from US custody to the custody of a foreign state is usually called "extraordinary rendition" in the USA, and appears to have been carried out by the Central Intelligence Agency (CIA) since 1995....

Some victims of "rendition" have later turned up in official US detention centres, such as Guantánamo Bay. Others have simply "disappeared" after being arrested by US agents or turned over to US custody.

It has been reported that the CIA, often using covert aircraft leased by front companies, has flown individuals to countries including Egypt, Jordan, Morocco, Pakistan, Saudi Arabia and Syria. Most of the states to which the USA transfers these individuals are known to use torture and other ill-treatment in interrogations. It is alleged that states which are known to practise torture have been specifically selected to receive detainees for interrogation and that detainees have been threatened by US interrogators that they will be sent to such states.

It has also been reported that victims of "rendition" transferred to US custody from other countries have been held in US-run secret detention centres outside US territory (sometimes called "black sites")....

The US administration has acknowledged it uses "rendition", maintaining that the practice is aimed at transferring "war on terror" detainees from the country where they were captured to their home country or to other countries where they can be questioned, held or brought to justice. It has contended that these transfers are carried out in accordance with US law and treaty obligations....

Amnesty International believes that these practices are illegal because they bypass any judicial or administrative process such as extradition. Under international law, it is illegal to transfer people from one country to another without any kind of judicial or administrative process.

Do you hear that, Scott Horton? Under international law. If you want more detailed legal discussion, please see Matteo M. Winkler's article, When ‘Extraordinary’ Means Illegal: International law and the European Reactions to the United States Rendition Program, Section 3.1 - Can Abduction Be Justified? (Yale Law School Student Scholarship Series, Paper 46). Also see Justice Stevens' dissent in U.S. v. Alvarez Machain, as well as F.A. Mann, "Reflections on the Prosecution of Persons Abducted in Breach of International Law", in International Law at a Time of Perplexity, 1988, Martinus Nijhoff Publishers:

A State which authorizes the abduction of a person from the territory of another sovereign State is guilty of a violation of public international law. This principle is supported by considerable State practice, numerous decisions of municipal courts, and a large body of doctrinal opinion. Its basis is the incontrovertible rule that exercise of physical force by one State without the latter's consent constitutes an excess of international jurisdiction or a violation of the 'principle of respect, which is guaranteed by not only Article 2 of the Charter of the United Nations and other texts, because these merely respond to firmly established and longstanding tenets of customary international law.'

But let us now return to Amnesty International's discussion:

Moreover, most victims of "rendition" were arrested and detained illegally in the first place: some were abducted; others were refused access to any legal process. Many victims of "rendition" have been or continue to be held in prolonged arbitrary detention and they have been or continue to be subjected to enforced disappearance. All of the victims of "rendition" Amnesty International has interviewed have also said they were subjected to torture and other ill-treatment.

"Rendition" usually involves multiple human rights violations, including abduction, arbitrary arrest and detention and unlawful transfer without due process of law. It also violates a number of other human rights safeguards: for example, victims of "rendition" have no possibility of challenging their detention, or the arbitrary decision to transfer them to another country.

"Rendition" is a key element in the global system of secret transfers and arbitrary detention. This system is designed to detain people, often for obtaining intelligence from them, free from any legal restriction or judicial oversight.

We are left with this quandry: why the wide gulf of opinions on rendition? Horton and others can point to ill-informed bloggers, constructing strawmen which they can then easily tear down, all the better to strut their expertise before the admiring crowd. But you won't see them tearing down Amnesty International or Reprieve, who totally oppose all renditions as ignoble and illegal acts of extrajudicial power and injustice. That might alienate some of their readers, who then might investigate for themselves.

What kind of game, we must ask at this crucial time in the fight against torture, including the full panoply of repressive measures routinely used by the Bush Administration, the Pentagon and the CIA, are these liberal columnists playing? Is it anything that different from what the mainstream press has done for years, i.e., toady up to the current administration or the opposition party, the better to keep access to sources? Or is there something more ideological, or even, heaven forbid, more sinister going on there? Is there any connection with the fact that an important civil suit on renditions, which also challenges the U.S.'s state secrets defense, namely Mohamad v. Jeppesen Dataplan, Inc. is about to go to trial? (Glenn Greenwald just interviewed Ben Wizner, the ACLU attorney representing the plaintiffs in the Jeppesen case.) Or is this just about securing future jobs in an Obama administration?

The Eichmann Case

Horton points to the kidnapping of Adolf Eichmann by the Israelis around 50 years ago as an example of "the prototype of an appropriate rendition." Here are the results of Horton's unfortunate example, taken from an article by Raanan Rein in Jewish Social Studies, Spring-Summer 2001 (emphasis added):

The election of Arturo Frondizi as president of Argentina in February 1958 was welcome news to both the Israeli embassy in Buenos Aires and the leaders of the local Jewish community. And he had not lived in the presidential palace for long before their expectations appeared to have been justified. The Jews of Argentina felt a growing sense of security and well-being, and relations between Jerusalem and Buenos Aires grew closer. The kidnapping of Adolf Eichmann in May 1960, however, interrupted this idyll, precipitating a crisis that nearly severed the ties between the two countries and threatened Argentine Jews' sense of personal security. The Argentine Jewish community, which was then just marking the hundredth anniversary of its existence, became the target of a wave of antisemitic terror and nationalist attacks that sought to cast doubt on Jewish citizens' loyalty to the Argentine republic.

Thus, the "appropriate rendition" by one party causes untold suffering and unforeseen political consequences for a vulnerable population. One wonders if Horton knows also that both the West Germans and the U.S. knew the location of Eichmann for two years before the Israeli kidnapping and did nothing to induce Argentina to arrest or otherwise extradite the man.

Or does Horton forget or not know that the Israeli court trying Eichmann itself alluded to violations of international law in his capture, which were adroitly "remedied" by getting the Argentines to forego, after the fact, asserting their sovereignty in the case?

The Israeli Court also determined that because "Argentina has condoned the violation of her sovereignty and has waived her claims, including that for the return of the Appellant, any violation of international law that may have been involved in this incident has thus been remedied."

I'm not saying that Eichmann shouldn't have been tried, nor that he didn't receive justice. But that's poetic or moral justice... not law. My problem with the use of kidnapping by states is a simple one. Who decides when a person is beyond the legal pale? Who makes the justice? Who decides that abduction is acceptable? How will our civilization rule itself, by the law of talion, or the law of due process?